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THE SEPARATION OF POWERS IN THE WTO: HOW TO AVOID JUDICIAL ACTIVISM

Published online by Cambridge University Press:  17 January 2008

Lorand Bartels
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Abstract

As with other legal systems based on a separation of powers, the World Trade Organization is marked by a degree of tension between its political organs and its quasi-judicial organs, in particular the Appellate Body. In late 2000 this tension spilled out into the public domain, when the Appellate Body announced a procedure for the filing of amicus curiae briefs in the EC-Asbestos case.1 The question of public participation in WTO dispute settlement proceedings is sensitive to many WTO Members, and in expressly encouraging the submission of amicus briefs in this way the Appellate Body was felt to be overstepping its functions.2 In the end, this dispute settled with a draw, the Appellate Body deciding that it had no need to consider any of the amicus briefs submitted in that particular case, and yet still maintaining that panels and the Appellate Body have the right to take unsolicited amicus briefs into account, should they so choose.

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Articles
Information
International & Comparative Law Quarterly , Volume 53 , Issue 4 , October 2004 , pp. 861 - 895
Copyright
Copyright © British Institute of International and Comparative Law 2004

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References

1 WTO Appellate Body Report European Communities—Measures Affecting Asbestos and Asbestos-Containing Products (‘EC-Asbestos’), WT/DS135/AB/R, adopted 5 Apr 2001.Google Scholar

2 The outcry is recorded in General Council Minutes of Meeting held on 22 November 2000, WT/GC/M/60, 23 01 2001. There is a substantial literature on the amicus dispute.Google ScholarSee, eg, Zonnekeyn, GA ‘The Appellate Body's Communication on Amicus Curiae Briefs in the Asbestos Case—An Echternach Procession?’ (2001) 35 Journal of World Trade 553 andCrossRefGoogle ScholarMarceau, G and Stilwell, M ‘Practical Suggestions for Amicus Curiae Briefs Before WTO Adjudicating Bodies’ (2001) 4 Journal of International Economic Law 155.CrossRefGoogle Scholar

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46 See GATT Panel Report United States—Imports of Sugar from Nicaragua, L/5607, unadopted, 13 03 1984 and GATT Panel Report United States—Trade Measures Affecting Nicaragua, L/6053, unadopted, 13 Oct 1986.Google Scholar

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48 See Frontier Dispute (Burkina Faso/Mali) [1986] ICJ Rep 554 (22 12), at para 45, for a discussion of distinction between jurisdiction and justiciability. For an application of this distinction to Art XXI GATT, see Akande and Williams ‘International Adjudication on National Security Issues’ above n 44.Google Scholar

49 Art XXIII GATT.Google Scholar

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51 WTO Appellate Body Report Brazil—Measures Affecting Desiccated Coconut (‘Brazil—Desiccated Coconut’), WT/DS22/AB/R, adopted 20 03 1997, at 18.Google Scholar

52 This was done to exclude certain national security issues in the Nicaragua/US GATT panel reports noted above n 46.Google Scholar

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57 Cf the ‘necessity’ test in Art XX, as described by WTO Appellate Body Report Korea—Measures Affecting Imports of Fresh, Chilled and Frozen Beef, WT/DS161/AB/R, adopted 10 01 2001, para 162 and in WTO Appellate Body Report EC—Asbestos, above n 1 at para 172. See also Akande and Williams, above n 44 at 394–6.Google Scholar

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60 This has led one former Director of the WTO Legal Affairs Division to advance the ‘modest proposal’ that a legal drafting group be made available in order to minimize ‘surprises’ from any texts adopted in the Doha Round of negotiations. See Kuijper, PJ ‘A Legal Drafting Group for the Doha Round: A Modest Proposal’ (2003) 37 Journal of World Trade 1031.Google Scholar

61 See WTO Appellate Body Report United States—Import Measures on Certain Products from the European Communities (‘US—Certain EC Products’), WT/DS165/AB/R, adopted 10 01 2001, para 92 and WTO Appellate Body Report United States—Anti-Dumping Measures on Certain Hot-Rolled Steel Products from Japan (‘US—Hot Rolled Steel’), WT/DS184/AB/R, adopted 23 Aug 2001, para 125. See also GATT Panel Report European Economic Community—Subsidies on Exports of Wheat Flour, SCM/42, BISD 31S/259, unadopted, 21 Mar 1983, para 5.3, where the panel said that ‘it was unable to conclude as to whether the increased share has resulted in the EEC “having more than an equitable share” in terms of Art 10 [of the SCM Code] in light of…most importantly, the difficulties inherent in the concept of “more than equitable share”.’Google ScholarPauwelyn, J ‘Cross-Agreement Complaints Before the Appellate Body: A Case Study of the EC-Asbestos Dispute’ (2002) 1 World Trade Review 167, considers that the Appellate Body declared a non liquet in refusing to decide on a claim under the TBT Agreement in WTO Appelate Body Report EC—Asbestos, above n 1. However, this can also be explained on the basis that the panel had made no legal findings under the TBT Agreement and therefore the Appellate Body had no jurisdiction to entertain these claims.CrossRefGoogle Scholar

62 It may be noted that Article 3.9 does not, on its face, add much to the rights of WTO Members under the WTO Agreement, given that in any case the WTO Agreement prevails over the DSU in the event of any conflict. Art XVI:3 of the WTO Agreement. Art II:2 of the WTO Agreement somewhat confusingly deems the DSU to be one of the ‘Multilateral Trade Agreements’ to which this conflicts rule applies.Google Scholar

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64 In the context of negotiations on DSU reform, Jordan has proposed adding a new Art 5 bis to the DSU, according to which parties and third parties to a dispute would be entitled to refer questions of interpretation to the General Council (which adds nothing to Art 3.9) and additionally would ‘follow the form, time-frame and other guidelines set by the General Council for this purpose’. This might allow for suspension of the DSU time limits. See WTO Document Jordan's Contributions Towards the Improvement and Clarification of the WTO Dispute Settlement Understanding, TN/DS/W/43, 28 01 2003.Google Scholar

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74 Emphasis added.Google Scholar

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78 WTO Appellate Body Report Australia—Measures Affecting the Importation of Salmon (‘Australia—Salmon’), WT/DS18/AB/R, adopted 6 11 1998, at para 233.Google Scholar

79 There is a risk involved in the exercise of judicial economy, as noted by Mavroidis, PC ‘Judicial Supremacy, Judicial Restraint, and the Issue of Consistency of Preferential Trade Agreements with the WTO: The Apple in the Picture’ in Kennedy, and Southwick, (eds) The Political Economy of International Trade Law; Essays in Honor of Robert E. Hudec (CambridgeCUP 2003) at 596. The danger is that panels will leave the Appellate Body with insufficient factual evidence to ‘complete the analysis’ in the event that it overturns the panel's other findings. Consequently, Mavroidis notes, panels have more recently tended to address all issues before them.Google Scholar

80 WTO Appellate Body Report Japan—Measures Affecting Agricultural Products (‘Japan—Agricultural Products’), WT/DS76/AB/R, adopted 19 03 1999, para 143, issue (d). Compare issue (d) in para 71 (issues raised on appeal).Google Scholar

81 See GATT Panel Report European Community Tariff Treatment on Imports of Citrus Products from Certain Countries in the Mediterranean Region, L/5776, unadopted, 7 02 1985, and GATT Panel Report EEC—Member States' Import Regimes for Bananas, DS32/R, unadopted, 3 June 1993.Google Scholar

82 WTO Appellate Body Report India—Quantitative Restrictions on Imports of Agricultural, Textile and Industrial Products (‘India—Quantitative Restrictions’), WT/DS90/AB/R, adopted 22 09 1999.Google Scholar

83 Art XVIII:B of GATT Understanding on the Balance-of-Payments Provisions of the General Agreement on Tariffs and Trade 1994 paras 5–12 (consultations) and 13 (report to General Council).Google Scholar

84 BOP Understanding para 13. This paragraph also states that ‘[w]henever the General Council has made specific recommendations, the rights and obligations of Members shall be assessed in the light of such recommendations.’Google Scholar

85 India—Quantitative Restrictions above n 82 at paras 89–95.Google Scholar

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87 Ibid at para 104.

88 WTO Appellate Body Report Turkey—Restrictions on Imports of Textile and Clothing Products (‘Turkey-Textiles’), WT/DS34/AB/R, adopted 19 11 1999.Google Scholar

89 Similar to footnote 1 of the BOP Understanding, para 12 of the Understanding on Art XXIV of the General Agreement on Tariffs and Trade 1994 provides that ‘[t]he provisions of Arts XXII and XXIII of GATT 1994 as elaborated and applied by the Dispute Settlement Understanding may be invoked with respect to any matters arising from the application of those provisions of Art XXIV relating to customs unions [or] free-trade areas…’.Google Scholar

90 Review of regional trade agreements was undertaken by Working Parties under Art XXTV:7(a) GATT, and para 7 of the Understanding on the Interpretation of Art XXIV. This function is now performed by the CRTA pursuant to WTO General Council Committee on Regional Trade Agreements, Decision of 6 02 1996, WT/L/127.Google Scholar

91 During the Uruguay Round the EC unsuccessfully proposed adding the following sentence to these provisions: ‘Such recourse to the dispute settlement provisions, however, shall not be allowed to question the conformity with GATT of existing customs unions, [or] free-trade areas…as long as the CONTRACTING PARTIES have not made a specific recommendation under Art XXIV:7 of the General Agreement’. See Communication from the European Communities, MTN.TNC/W/125,13 12 1993.Google Scholar

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93 Turkey—Textiles, above n 88 at para 60.Google Scholar

94 Ehlermann, above n 77 at 306.Google Scholar

95 Cf Mavroidis, above n 79 and Davey, WJ ‘Has the WTO Dispute Settlement System Exceeded Its Authority?’ (2001) 4 Journal of International Economic Law 79 at 85–8.CrossRefGoogle Scholar

96 On this see above n 75.Google Scholar

97 Roessler, above n 90 at 340.Google Scholar

98 See, eg, Oil Platforms, Preliminary Objections, Judgment [1996] ICJ Rep 803 (12 Dec) and the Separate Opinion of Judge Higgins.Google Scholar

99 Roessler, above n 92 at 344.Google Scholar

100 Davey, above n 95 at 87, states that a panel can determine whether or not balance of payments measures are justified with the aid of advice from the IMF, while acknowledging the greater complexities involved in any determination by panels of the legality of regional trade agreements. In support of panel review in the case of regional trade agreements, see Mavroidis, above n 77.Google Scholar

101 Roessler, above n 92 at 342.Google Scholar

102 Davey, above n 95 at 87 and Mavroidis, above n 79 at 595.Google Scholar

103 Roessler, above n 92 at 342.Google Scholar

104 India Quantitative Restrictions above n 82 at para 104.Google Scholar

105 WTO Panel Report India—Quantitative Restrictions on Imports of Agricultural, Textile and Industrial Products, WT/DS90/R, adopted 22 09 1999, para 5.90.Google Scholar

106 Ibid para 5.93.

107 Ibid. The panel ignores the condition in Art IX:3 of the WTO Agreement that a waiver be granted only ‘in exceptional circumstances’ and kept under review.

108 Ibid para 5.94.

109 Mavroidis, above n 79 at 597, expresses the view that a panel would respect the decision of the CRTA.Google Scholar

110 Military and Paramilitary Activities in and against Nicaragua (Nicaragua/US), Jurisdiction and Admissibility, Judgment [1984] ICJ Rep 392 (26 Nov), at para 95.Google Scholar

111 Eg Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina/Yugoslavia (Serbia and Montenegro), Provisional Measures, Order [1993] ICJ Rep 3 (8 Apr) para 33.Google Scholar

112 Akande, D ‘The International Court of Justice and the Security Council: Is There Room for Judicial Control of the Political Organs of the United Nations’ (1997) 46 ICLQ 309 at 313.CrossRefGoogle Scholar

113 Ibid at 313; see also Gowlland-Debbas, V ‘The Relationship Between the International Court of Justice and the Security Council in Light of the Lockerbie case’ (1994) 88 AJIL 643 andCrossRefGoogle ScholarGray, C ‘The Use and Abuse of the International Court of Justice: Cases Concerning the Use of Force after Nicaragua’ (2003) 14 EJIL 867.CrossRefGoogle Scholar

114 Exclusivity does not seem to be required in the context of competing judicial proceedings (and nor does it so far seem to be conclusive). Here the situation is usually analysed in terms of the doctrine of litis pendens, which entitles a tribunal, on certain conditions, to decline to exercise its jurisdiction when there is a danger of conflicting judgments. The conditions are an identity of parties, matters in dispute, object of proceedings (Polish Upper Silesia (Jurisdiction) [1925] PCIJ Ser A, No 6, at 19–20) and remedies (The Factory at Chorzów (Germany/Poland) (Claim for Indemnity) (Jurisdiction) [1927] PCIJ Ser A, No 9, at 27). It should be noted however that in these cases the doctrine was neither applied nor expressly approved, and it remains unclear whether it applies in international law. In support, see Shany, above n 69 at 244 andGoogle ScholarLowe, V ‘Overlapping Jurisdictions in International Tribunals’ (2000) 20 Australian Yearbook of International Law 1 at 195–7.Google Scholar

115 Upper Silesia Rights of Minorities in [1928] PCIJ Ser A, No 15 at 23.Google Scholar

116 This is the precursor to Art 36(1) of the ICJ Statute.Google Scholar

117 Upper Silesia Rights of Minorities in, above n 113 at 23. See also Shany, above n 71 at 232–4.Google Scholar

118 WTO Document Philippines—Measures Affecting Trade and Investment in the Motor Vehicle Sector—Communication from the Philippines, WT/DS195/4, 7 11 2002. A panel was established, though never composed: WTO Secretariat, Update of WTO Dispute Settlement Cases, WT/DS/OV/20, 26 Mar 2004.Google Scholar

119 This decision, entitled ‘TRIMs Transition Period Issues’ is found in Annex II of General Council Minutes of Meeting held on 3 and 8 May 2000, WT/GC/M/55, 16 06 2000, and states that ‘Members agree to direct the Council for Trade in Goods to give positive consideration to individual requests presented in accordance with Art 5.3 by developing countries for extension of transition periods for implementation of the TRIMs Agreement.’Google Scholar

120 WTO Dispute Settlement Body Minutes of Meeting held on 17 November 2000, WT/DSB/M/92, 15 01 2001, para 58. See also WTO Document Philippines—Measures Affecting Trade and Investment in the Motor Vehicle Sector—Communication from the Philippines, WT/DS195/4,7 Nov 2000.Google Scholar

121 In Case Concerning the Northern Cameroons (Cameroon/UK) [1963] ICJ Rep 3 (2 Dec), at 29, the Court referred to its power to declare certain cases inadmissible on the basis that ‘[t]he Court itself, and not the parties, must be the guardian of the Court's judicial integrity’. See also Nuclear Tests (Australia/France), Judgment [1974] ICJ Rep 253 (20 Dec) at 271Google Scholar

122 WTO Members have criticized comparisons between the WTO dispute settlement system and other international tribunals. See eg Special Session of the Dispute Settlement Body, Minutes of Meeting held on 10 September 2002, TN/DS/M/4, 6 November 2002, para 38 (Brazil), para 40 (Indonesia), para 42 (Malaysia), para 52 (Costa Rica), para 53 (Venezuela). See also F Weiss ‘Inherent Powers of National and International Courts’ in Ortino and Petersmann above n 33, who states that ‘[w]hile the AB searches and even seeks to expand the parameters of its power, it is too dependent upon the Members of the WTO for it to possess anything akin to inherent powers’ (at 189). Weiss also questions whether the Appellate Body's decision to admit amicus curiae briefs, and its practice of ‘completing the analysis’ in the absence of appealed legal findings, could be considered evidence of inherent powers, but rejects this possibility on the basis that neither practice can be defended as ‘necessary’ to the functioning of the dispute settlement system (ibid).

123 The fact that panels have the duty to determine their own jurisdiction does not give them a judicial character. The ICJ has held in the context of the United Nations that even the political organs of that organization have a duty to determine their own jurisdiction. See Certain Expenses of the United Nations (Advisory Opinion), [1962] ICJ Rep 151 (20 July) at 168, and Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, [1971] ICJ Rep 16 (26 Jan) at 49.Google Scholar

124 Ehlermann, above n 77 at 305, mentions this provision in the context of cautioning selfrestraint on the part of Members in bringing institutional balance questions to dispute settlement.Google Scholar

125 Compare the expansive reading of Art 3.7 DSU in Martha, RSJ ‘The Duty to Exercise Judgment on the Fruitfulness of Actions in World Trade Law’ (2001) 35 Journal of World Trade 1035.CrossRefGoogle Scholar

126 WTO Appellate Body Report Mexico—Corn Syrup (Art 21.5—US) above n 75 at para 74.Google Scholar

127 WTO Appellate Body Report US—FSC, above n 50, para 166 (noting that ‘[t]his pervasive principle requires both complaining and responding Members to comply with the requirements of the DSU (and related requirements in other covered agreements) in good faith); WTO Appellate Body Report Canada—Measures Affecting the Export of Civilian Aircraft, WT/DS70/AB/R, adopted 20 Aug 1999, para 190; WTO Appellate Body Report Thailand—Anti-Dumping Duties on Angles, Shapes and Sections of Iron or Non-Iron Alloy Steel and H-Beams from Poland (‘Thailand—Steel’), WT/DS122/AB/R, adopted 5 Apr 2001, para 97.Google Scholar

127 In its First Written Submission in European Communities—Export Subsidies on Sugar, WT/DS265, 11 03 2004 (available at <http://www.trade-info.cec.eu.int/doclib/cfm/doclib_type.cfm?type=4>), at paras 129, the EC relies on Art 3.10 of the DSU as a basis for a panel to reject a claim. Australia argues in its Rebuttal Submission, 21 Apr 2004 (available at <http://www.dfat.gov.au/trade/negotiations/disputes/265_australia_rebuttal_sub.html>), at para 120, that Art 3.10 requires good faith during dispute settlement proceedings, and that it is Art 3.7 that governs the question whether a claim may be rejected. See also the parties' Oral Statements, available at the above websites.),+at+paras+129,+the+EC+relies+on+Art+3.10+of+the+DSU+as+a+basis+for+a+panel+to+reject+a+claim.+Australia+argues+in+its+Rebuttal+Submission,+21+Apr+2004+(available+at+),+at+para+120,+that+Art+3.10+requires+good+faith+during+dispute+settlement+proceedings,+and+that+it+is+Art+3.7+that+governs+the+question+whether+a+claim+may+be+rejected.+See+also+the+parties'+Oral+Statements,+available+at+the+above+websites.>Google Scholar

129 Arts 1.1,1.2, 2.1, 2.4, 3.1, 3.11, 3.12, 23.1, and 23.2 of the DSU.Google Scholar

130 Arts 3.7, 3.10,10.4, 12.11, 21.5 22.2, 24.1, and 27.3 of the DSU.Google Scholar

131 WTO Appellate Body Report United States—Sunset Review of Anti-Dumping Duties on Corrosion Resistant Carbon Steel Flat Products from Japan (‘US—Corrosion Resistant Steel Sunset Review’), WT/DS244/AB/R, adopted 9 Jan 2004.Google Scholar

132 WTO Appellate Body Report US—FSC, above n 50, para 166; WTO Appellate Body Report United States-Transitional Safeguard Measure on Combed Cotton Yarn from Pakistan (‘US—Cotton Yarn’), WT/DS192/AB/R, adopted 5 Nov 2001, para 81.Google Scholar

133 Above n 126.Google Scholar

134 Border and Transborder Armed Actions (Nicaragua/Honduras), Jurisdiction and Admissibility, Judgment [1988] ICJ Rep 69 (Dec 20) at para 94. In Case Concerning the Land and Maritime Boundary Between Cameroon and Nigeria (Cameroon/Nigeria), Preliminary Objections [1998] ICJ Rep 275 (11 June), the ICJ held that the principle of good faith did not require a State to inform another State subject to compulsory jurisdiction of the Court that it was intending to accept compulsory jurisdiction, and shortly thereafter to commence proceedings against that State.Google Scholar

135 Regarding the obligation to perform obligations in good faith (reflected in Art 26 of the Vienna Convention on the Law of Treaties), see Lukashuk, U ‘New Thinking by Soviet Scholars: The Principle Pacta Sunt Servanda and the Nature of Obligation under International Law’ (1989) 83 AJIL 513 at 514, who notes that ‘[i]n jurisprudence the term “obligation” is not equivalent to the term “duty”, since the former includes not only duties, but also relevant rights. Rights, too, should be exercised in good faith, ie, in conformity with the purposes and principles of international law and without prejudice to the legitimate interests and rights of other subjects of that law.’CrossRefGoogle Scholar

136 Fitzmaurice, GThe Law and Procedure of the International Court of Justice (CambridgeGrotius 1986) vol 1 at 12–13.Google Scholar

137 Kiss, A ‘Abuse of Rights’ in Encyclopaedia of Public International Law (Amsterdam North-Holland 1984) at 4.Google Scholar For a fuller discussion of the doctrine, see Paul, V ‘The Abuse of Rights and Bona Fides in International Law’ (1977) 28 Österreichische Zeitschrift für Öffentliches Recht und Völkerrecht 107.Google Scholar

138 WTO Appellate Body Report US—Shrimp, above n 40, para 158. The Appellate Body quoted Cheng, BGeneral Principles of Law as Applied by International Courts and Tribunals (Stevens and Sons 1953).Google Scholar

139 These issues concerned the standing of the parties before the Tribunal, the division of competences between the European Community and its Members States with respect to UNCLOS, and the exclusive jurisdiction of the European Court of Justice. Another problem was ‘the extent to which provisions and instruments invoked by the Parties may properly be relied upon before this Tribunal’. See MOX Plant Arbitration (Ireland/UK), Order No 3, Suspension of Proceedings on Jurisdiction and Merits and Request for Further Provisional Measures, 24 June 2003, Arbitral Tribunal constituted under Art 287 and Annex 1, Art 1 of UNCLOS, available at <http://www.pca/cap.org> at para 20.+at+para+20.>Google Scholar

140 This exact situation was foreshadowed in Lowe, above n 114 at 199.Google Scholar

141 MOX Plant Arbitration (Ireland/UK), Order No 3, above n 139, para 28. A further suspension was ordered in MOX Plant Arbitration (Ireland/UK), Order No 4, Further Suspension of Proceedings on Jurisdiction and Merits, 14 Nov 2003, Arbitral Tribunal constituted under Art 287 and Annex 1, Art 1 of UNCLOS, available at <http://www.pca-cap.org>..>Google Scholar

142 MOX Plant Arbitration (Ireland/UK), Rules of Procedure, Arbitral Tribunal constituted under Art 287 and Annex 1, Art 1 of UNCLOS, available at <http://www.pca-cap.org>..>Google Scholar

143 The panel also retains a discretion not to suspend proceedings even on request of the complainant. In this context, it is relevant to note the joint proposal by Chile and the United States, which would amend Art 12.12 to entitle the parties to a dispute to require a panel to suspend proceedings. See WTO Document TN/DS/W/52, 14 Mar 2003, above n 31 at para (d). Compare Rule 30(1) of the Appellate Body's Working Procedures, below n 146 which states that ‘[a]t any time during an appeal, the appellant may withdraw its appeal by notifying the Appellate Body, which shall forthwith notify the DSB.’Google Scholar

144 MOX Plant Arbitration (Ireland/UK), Transcript of Proceedings, Day Eight, 21 June 2003, Arbitral Tribunal constituted under Art 287 and Annex 1, Art 1 of UNCLOS, available at <http://www.pca-cap.org> at paras 37, 38, and 90. It is perhaps relevant that both parties are bound in this regard by a duty of cooperation under Art 10 of the EC Treaty.+at+paras+37,+38,+and+90.+It+is+perhaps+relevant+that+both+parties+are+bound+in+this+regard+by+a+duty+of+cooperation+under+Art+10+of+the+EC+Treaty.>Google Scholar

145 See WTO Panel Report United States—Imposition of Countervailing Duties on Certain Hot-Rolled Lead and Bismuth Carbon Steel Products Originating in the United Kingdom (‘US—Lead and Bismuth II’), WT/DS138/R, adopted as upheld by the Appellate Body Report 7 June 2000, at para 6.2.Google Scholar

146 The current version is WTO Document Working Procedures for Appellate Review, WT/AB/WP/7, 1 May 2003. The Appellate Body circulated proposed amendments for consultation in WTO Document Proposed Amendments to the Working Procedures for Appellate Review—Communication from the Appellate Body, WT/AB/WP/8, 8 Apr 2004.Google Scholar

147 WTO Appellate Body Report EC-Hormones, above n 39, para 152 n 138.Google Scholar

148 WTO Appellate Body Report India—Patent Protection for Pharmaceutical and Agricultural Chemical Products (‘India—Patents (US)’), WT/DS50/AB/R, adopted 16 Jan 1998, at para 92.Google Scholar

149 WTO Appellate Body Report United States—Imposition of Countervailing Duties on Certain Hot-Rolled Lead and Bismuth Carbon Steel Products Originating in the United Kingdom(‘US—Lead and Bismuth II’), WT/DS138/ABR, adopted 7 June 2000, at para 39. This proviso is reflected in Rule 16(1) of the Appellate Body's Working Procedures.Google Scholar

150 Art 12.8 DSU states that ‘the period in which the panel shall conduct its examination…shall, as a general rule, not exceed six months’ and Art 12.9 provides that ‘in no case should the period from the establishment of the panel to the circulation of the report to the Members exceed nine months’. In similar fashion, Art 17.5 DSU recommends that the Appellate Body circulate its report within 60 days, and requires it to do so within 90 days. There is also a week-by-week timetable established for panel proceedings in Appendix 3 of the DSU, although this may be altered by the panel after consulting with the parties to the dispute. In addition to these provisions, it is necessary to mention Art 20 DSU, which implies that the parties may agree to extend the time period for panel and Appellate Body proceedings, despite the obligations imposed on panels and the Appellate Body to issue their reports within nine and three months respectively. Art 20 also confusingly describes the nine month deadline in Art 12.9 as ‘a general rule’, to which the extra time allowed pursuant to Arts 12.9 and 17.5 is to be added.Google Scholar

151 In WTO Appellate Body Report US—Lead and Bismuth II, above n 149, at para 8, the Appellate Body took a decision under Rule 16(1) of the Working Procedures that contradicted the time limit in Art 17.5 of the DSU. The parties agreed with the Appellate Body to extend the 90-day period for circulation of the report by two weeks. However, this was necessary to accommodate the passing away of one of the Members of the Appellate Body Division hearing the appeal, and it would be difficult to extract much of value from this occurrence. The 90-day period was also exceeded in WTO Appellate Body Report EC—Hormones, above n 39, WTO Appellate Body Report EC—Asbestos, above n 1, and WTO Appellate Body Report Thailand—Steel, above n 127.Google Scholar